March 29, 2014

Sen. Kristen Gillibrand (D-NY) fought for almost a year to move major crimes outside the military chain of command for judicial review but failed to get the necessary 60 votes in early March. That 60 votes, of course, is the new majority of 100 Senate members because almost everything is filibustered except for nominees. After the failure of the Military Justice Improvement Act, Sen. Claire McCaskill’s (D-MO) bill, which maintains status quo with extra protections for victims, unanimously passed. Male senators fought to keep military commanders in control with the claim that they’ll lose their power if an independent court rules on sexual assaults. As Sen. John McCain (R-AZ) said on the senate floor, “I trust these commanders. I trust them.” Gillibrand countered by saying:

“It’s not whether anyone in this chamber trusts the chain of command, the people who do not trust the chain of command are the victims. … The reason why the female victim does not come forward is because she does not trust the chain of command.”

Lack of trust is understandable because the top Army prosecutor for sexual assault cases was suspended after being accused of sexually assaulting a female lawyer who worked for it. The alleged act was at a legal conference about sexual assault. The current poster commander for sexual assault in the military is Brig. Gen. Jeffrey A. Sinclair. Shortly after Gillibrand’s bill failed, he was permitted to plead guilty to adultery, soliciting explicit pictures from female officers, disobeying a commander, possessing pornography in a combat zone and misusing his government credit card. His sentence included a reprimand with salary and restitution penalties of about $25,000 and a reduction in rank to lieutenant colonel. He will not serve any jail time, and he kept his pension and benefits. One reason that he got off almost scot-free was potential unfair advantage for command influence. The judge in the court-martial questioned whether the prosecution rejected an earlier plea-bargaining attempt because commanders felt politically pressured to prosecute Sinclair to the fullest extent. “Allowing the accused to characterize this relationship as a consensual affair would only strengthen the arguments of those individuals that believe the prosecution of sexual assault should be taken away from the Army,” the accuser’s counsel had written. Senior officers loved Sinclair, but those who served below him didn’t have much respect for the brigadier. After his departure from their command, soldiers put on a skit in which one of them asked the person portrayed as Sinclair if he wanted oral sex. Charges against him included a captain being forced to perform oral sex on Sinclair. She also claimed that he threatened her and her family if she revealed their three-year affair after she said she was looking forward to meeting his wife. Rep. Jackie Speier (D-CA) said, “This is another sordid example of how truly broken the military justice system is.” At a House Armed Services Committee hearing, she said to Secretary of the Army John McHugh, “This is a sexual predator. For a sexual predator to gain this rank and [be] given a slap on the wrist suggests that the system doesn’t work.” Rep. Niki Tsongas (D-MA) said the case demonstrated a “toxic military culture.” McHugh said he is still reviewing the case and has the option to demote the general and sharply reduce his retirement pay. Observers say that commanders keep prosecutors from bringing cases to court or force prosecutors to take unwinnable cases to court. The control is entirely with the commanders. Former President Jimmy Carter, who served in the Navy, supports the removal of authority from commanders in the cases of sexual assault. He said, “I was a submarine officer. I was qualified to command submarines. And it’s almost impossible for commanding officers to bring to justice a rapist, because it reflects adversely on his capability as a military commander if sexual abuse is taking place in his company or his battalion.” There are other reasons for moving the decisions out of the commanders’ control. They may not punish service members because they like them, and they may not want to be distracted from their mission. A colonel was asked why he failed to take action after a guardswoman reported that she had been raped by a guardsman in Iraq. He said, “I didn’t have time for that high school drama.” The guardsman got a letter of reprimand; the guardswoman received a medical discharge for PTSD. Another soldier court-martialed for sexually harassing a female soldier was convicted with no punishment. After the trial, he hugged the victim, saying “no hard feelings.” General Brigadier Bryan T. Roberts wasn’t as fortunate as Sinclair. The commander of the Fort Jackson (SC) training camp which trains approximately 60% of incoming female recruits was fired for adultery after he beat his mistress hard enough to send her to the hospital for three times. Air Force Lt. Col. Jeffrey Krusinski was luckier. The Air Force’s head of sexual assault prevention was drunk and charged with grabbing a woman’s breasts and buttocks in a parking lot. The 23-year-old American University graduate testified that he came up behind her while she was on the phone, gave her a “squeeze,” and “asked me if I liked it.” She punched him. The server testified that “he was just a drunken mess.” Using the excuse that he might have grazed the woman by accident, Krusinski got off. Rape victims are reluctant to report these crimes for good reason. Almost two years ago, attorneys questioned a 21-year-old female midshipman at the Naval Academy for over 20 hours after she accused three other students of sexual assault at an off-campus party. She had seen social media posts leading her to believe that she was raped while she was drunk. All three defendants admitted sexual contact with her on that night. Defense attorneys tried to silence her with the following questions and statements:

How do you perform oral sex?

Tell us about your sex life?

You had sex with him before, right?

You were flirting.

Did you “feel like a ho” the next morning? [Yes, this was one of the questions.]

You must be hiding something.

Drunk sex is not sexual assault.

The case proceeded, with only one of the three going through a court-martial last week. He was exonerated; the victim wasn’t. A sexual assault “prevention and response” brochure issued by the U.S. Air Force (USAF) advises victims to consider submitting to their attack. “It may be advisable to submit than to resist,” the guide said in a section labeled, “If you are attacked,” saying victims should make that decisions based on the circumstances behind their attack while being “especially careful” if their attacker has a weapon. There are no directions in the brochure telling service members not to commit sexual assault. Great Britain, Canada, Australia and Israel are among the many nations that have moved disposition of sexual assault crimes out of the military to be determined independently by trained prosecutors. In Germany, all offenses against military order, such as being disrespectful, are handled administratively, Crimes, even crimes by military members, are prosecuted by civilian officials. That would level the prosecution field, but the United States thinks that its military is too special and sexual assault victims are expendable.